Why and How New York Should Enact Mandatory Statewide Eyewitness Identification Procedures

Rikard, Andrew D., Albany Law Review

I. INTRODUCTION

Since 1989, the use of DNA evidence to exonerate wrongfully convicted individuals (1) has illuminated certain flaws inherent in the structure and procedures of our criminal justice system. One commentator's analogy is particularly appropriate: "Just as the current economic recession revealed bad practices in the financing system and Ponzi schemes, the recent DNA exonerations have exposed the bad eyewitness identification procedures that lead to wrongful convictions." (2) With the spotlight cast on these imperfections, two important, but seemingly basic, questions are raised: (1) how just, effective, and accurate is our criminal justice system; and (2) what can be done to improve it?

In answering the former question, one could not logically argue that the system is, or even could be, completely just, effective, and accurate. Any system involving human decisionmaking will inevitably produce some degree of error. However, an ever-increasing majority of legal and other scholars aver that the system may be even less just, effective, and accurate than previously believed. This belief is grounded in the argument that certain steps, although readily available and scientifically proven to mitigate the abovementioned human error, are not being taken.

Based upon this argument, many groups, agencies, scholars, and task forces are proponents of various evidentiary reforms, which address the latter question above. While there seems to be a general consensus on the specific types of reform required, the suggested application and implementation of these reforms varies from group to group.

Of the various changes to evidentiary law widely recommended by researchers and practitioners, (3) the reform of eyewitness identification procedures may produce the most striking improvement in the efficacy, accuracy, and fairness of the criminal justice system. This is because eyewitness misidentification is by far the most prevalent of all the factors cited as regularly causing wrongful convictions; of the 239 wrongful convictions hitherto overturned through DNA evidence in the United States, seventy-five percent involved witness misidentification. (4)

While the underlying scientific reasoning is too complex for full explication here, the near consensus of the scientific community is that eyewitness identifications are inherently unreliable as clearly and widely expressed within the pages of the scholarly literature. (5) As such, the procedures utilized in obtaining these identifications must be as minimally suggestive as possible in order to prevent further degradation of such foundationally fragile and questionable, although highly important, evidence. Procedures must be designed to winnow away the chaff of unreliable identifications, while not wasting the precious wheat of reliable eyewitness identification evidence. Fortunately, reform of eyewitness identification procedures is seemingly quite feasible, as legislation to that effect can be grounded in the voluminous research and scholarly literature on this topic, including various empirical studies, (6) "best practices" guidelines or proposed solutions, (7) and model legislation, (8)

Unfortunately, despite widespread scientific and scholarly support for such reforms, New York State has failed to enact any type of statewide eyewitness identification procedure, (9) and continues to rely upon the demonstrably flawed approach (10) of a thirty-three-year-old United States Supreme Court decision. (11) This comment proposes that New York State, through the adoption of mandatory statewide witness identification procedures, fulfill its moral and ethical duty to protect the innocent. (12) As one observer aptly stated,

[t]he time has come for eyewitness researchers and experts to move
out of the laboratory and courtroom--and into the police station.
The time has come to use all that we know to improve the procedures
used to conduct the lineups and photo arrays that too often give
rise to mistaken identifications. …

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